Can selective blocking pre-empt wider censorship?

Last
week, Twitter provoked a fierce debate online when it announced a new capability--and related
policy--to hide tweets on a country-specific basis. By building this feature
into its website's basic code, Twitter said it hoped to offer a more tailored
response to legal demands to remove tweets globally. The company will inform
users if any tweet they see has been obscured, and provide a record of all
demands to remove content with the U.S.-based site chillingeffects.org.

A number of outlets also noted that changing
the country from which Twitter assumes you are viewing would be relatively
easy--just a matter of tweaking a setting on your profile. So if
content is blocked in the U.K. only, British readers
would be able to see the original content by switching to a U.S. setting.

Earlier this month, Google introduced a similar process for blogs
hosted on its Blogger service. If a site contained content prohibited in a
country, readers there would be redirected to a new, filtered website address.
Users in other countries would see the original content. Readers in blocked
countries could switch to the unblocked version by visiting a special URL.

These models, in a roundabout way, have evolved
from previous experiences of Silicon Valley tech companies in dealing with
foreign jurisdictions. Yahoo lost
a jurisdictional and technical argument in 2000 when it claimed that
it could not prevent French users from participating in auctions of Nazi memorabilia
on its site, an act prohibited by French law. Technical experts testified that
Yahoo could identify and therefore block the majority of French users by examining
their IP addresses. Yahoo eventually took the simpler step of refusing Nazi memorabilia
sales entirely. A French law became a global one for Yahoo users because Yahoo
first denied it had the capability, and then neglected to implement a technical
system for separating French readers from other visitors.

Google, faced with similar challenges over the
lawfulness of YouTube content, took a different tack. Acknowledging that it
could block selectively by location, the company chose that route when local
law requires. For instance, videos that breach British law forbidding the
filming of court proceedings have been blocked in the UK only. Videos that
demean the Turkish founder, Atatürk, are blocked only in Turkey, where they are
deemed illegal.

In Google's case, the code to regionally block
preceded the policy decision. YouTube has always had a very overt system of
regional blocking, which is used to prevent copyrighted material from being
shown in countries where the content was not licensed for distribution. The
company repurposed this tool for legal censorship requests.

Now Twitter and Google are building their own,
new tools specifically to deal with legal requests. Both argue that their wish
is to minimize the amount of content that is deleted from their site entirely.

All of which illustrates the truth of the old
geek adage "code is law". What governments
can oblige companies to do is heavily influenced by what the companies
themselves have previously built. In the case of Twitter, no national
censorship demands have so far been accepted, even though the company has
expanded into countries such as the U.K. where civil lawsuits can require content
be taken down by intermediaries.

Twitter's new code attempts to mirror what many
countries see as the territorial limit of their powers. When the French courts
demanded that Yahoo block French users from participating in Nazi auctions,
they did not see themselves as having the authority to order Yahoo to cease all
such auctions.

But that's not the case for the most
press-unfriendly regimes. They don't want to simply hide content from some users; they want offending content
removed in its entirety worldwide. And if they can't get that through legal
means, they will attempt to obtain it through threats, internal technical
measures, or ingenious workarounds of their own. The Turkish courts did not
accept Youtube's selective blocking of Atatürk videos, so they blocked the
entire YouTube site. States that want information removed from Facebook will be
as likely to use floods of fake complaints or drown out the data from their own
users, as happens in countries like Syria and Bahrain.

Code has another influence on censors. What
censoring states truly want from companies such as Twitter and Facebook varies
by how the sites are built and used.

Twitter's 140-character limit is not a physical
restriction, but simply a constraint arbitrarily built into the site's code.
That simple, coded, limit affects everything that Twitter users do, and what
censors wish to stop. The code defines the community.

The most intrusive censorship regimes are
concerned about micro-blogging sites not because of specific statements they
wish removed, but because they are used to quickly spread news. Reporters break
stories on Twitter; readers link to journalism on it. Both are dangerous
practices in censorious countries.

You can't stop the flow of tweets by issuing a
court order to Twitter to lock down a single posting. You certainly can't do it
by restricting visibility in a single country. What a censor needs in such
cases is the ability to pre-emptively block entries--defining a series of keywords that will silence an
entire set of micro-blog entries on a particular topic.

This is what China does with its local Twitter
competitors. It's the power that future legislators will seek in order to
control the spread of allegedly defamatory language, supposedly offensive slurs
to national heroes, and information about protests and riots.

From their current statements, providing such
prior restraint is a line that Twitter currently refuses to cross. Whether they
can maintain that stance amid global expansion and more carefully tailored
legal challenges is unclear.

Twitter's new code is an attempt to
pre-emptively fend off legal attacks that seek to remove its users' content. It
seems a sincere and thoughtful attempt to limit the damage. Its many critics
are also right in being concerned that it reveals a new front in censorship.
Unfortunately, the first shots in that fight were fired a long time ago.

San Francisco-based CPJ Internet Advocacy Coordinator Danny O’Brien has worked globally as a journalist and activist covering technology and digital rights. Follow him on Twitter @danny_at_cpj.